Case: 23-2358 Document: 40 Page: 1 Filed: 05/30/2025
United States Court of Appeals
for the Federal Circuit
______________________
LARRY B. HERRINGTON,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-2358
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-5981, Judge Margaret C. Bartley.
______________________
Decided: May 30, 2025
______________________
KENNETH DOJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant. Also represented by
KENNETH M. CARPENTER.
STEVEN MICHAEL MAGER, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee.
Also represented by BRIAN M. BOYNTON, WILLIAM JAMES
GRIMALDI, PATRICIA M. MCCARTHY; JONATHAN KRISCH,
DEREK SCADDEN, ANDREW J. STEINBERG, Office of General
Case: 23-2358 Document: 40 Page: 2 Filed: 05/30/2025
2 HERRINGTON v. COLLINS
Counsel, United States Department of Veterans Affairs,
Washington, DC.
______________________
Before MOORE, Chief Judge, CUNNINGHAM, Circuit Judge,
and SCARSI, District Judge. 1
MOORE, Chief Judge.
Larry B. Herrington appeals a decision of the United
States Court of Appeals for Veterans Claims (Veterans
Court) affirming the Board of Veterans’ Appeals’ (Board)
denial of a disability evaluation in excess of 30% for gastroesophageal reflux disease (GERD). We affirm.
BACKGROUND
Mr. Herrington served on active duty in the U.S. Air
Force from January 1970 to December 1972 and from August 1990 to August 1991. Herrington v. McDonough, No.
21-5981, 2022 WL 17985143, at *1 (Vet. App. Dec. 29,
2022). In September 2009, Mr. Herrington filed a claim for
service connection for Barrett’s disease, chronic gastritis,
reflux disease, and hiatal hernia.
Id. The Department of
Veterans Affairs (VA) regional office awarded service connection for GERD with a non-compensable evaluation.
Id.
Eventually, the Board awarded a 30% evaluation for GERD
by analogy to the diagnostic code for hiatal hernia, Diagnostic Code (DC) 7346, and denied an evaluation in excess
of 30%. Id. at *2. The Veterans Court affirmed the Board’s
decision, concluding the Board’s selection of DC 7346 was
“not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. at *1–5. Mr. Herrington appeals.
1 The Honorable Mark C. Scarsi, District Judge,
United States District Court for the Central District of California, sitting by designation.
Case: 23-2358 Document: 40 Page: 3 Filed: 05/30/2025
HERRINGTON v. COLLINS 3
DISCUSSION
This appeal involves a single issue: what standard the
Veterans Court should apply when reviewing the Board’s
selection of an analogous diagnostic code to rate a disability
under 38 C.F.R. § 4.20. Mr. Herrington argues the correct
standard is de novo review, and the Veterans Court erred
by applying the “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” standard set
forth in
38 U.S.C. § 7261(a)(3)(A). Appellant Br. 5.
Whether the Veterans Court applied the correct legal
standard is a question of law we have jurisdiction to review
de novo. Conyers v. McDonough,
91 F.4th 1167, 1170 (Fed.
Cir. 2024);
38 U.S.C. § 7292(d).
This issue is one of first impression. The relevant regulation states:
When an unlisted condition is encountered it will
be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and
symptomatology are closely analogous.
38 C.F.R. § 4.20. In other words, the regulation allows a
veteran’s disability to be rated by analogy when the disability “does not clearly fall under one of the delineated diagnostic codes” listed on the VA’s Schedule for Rating
Disabilities (Schedule). Webb v. McDonough,
71 F.4th
1377, 1378–79 (Fed. Cir. 2023) (citing
38 C.F.R. § 4.20).
Our precedent is clear that selection of a diagnostic
code for conditions listed on the Schedule “concerns questions of fact—or at least questions of the application of the
law to the facts[.]” Delisle v. McDonald, 789 F.3d 1372,
1374 (Fed. Cir. 2015). In the related context of unlisted
conditions, we see no reasonable argument that selection
of a “closely related disease or injury” for rating by analogy
does not also concern such questions. The plain language
of
38 C.F.R. § 4.20 demonstrates selection of a “closely
Case: 23-2358 Document: 40 Page: 4 Filed: 05/30/2025
4 HERRINGTON v. COLLINS
related disease or injury” is a fact-intensive inquiry requiring specialized expertise and evaluation of “the functions
affected,” “the anatomical localization,” and “symptomatology” of an unlisted condition in relation to listed conditions.
Further, it is evident the Board applied the law to the facts
of Mr. Herrington’s case to determine “the lay and medical
evidence more nearly approximates the criteria for a rating
of 30 percent for GERD, under DC 7346,” and “no other diagnostic code provides for a higher rating.” J.A. 132–33.
For example, the Board considered Mr. Herrington’s prior
medical examinations, symptoms, and medications; the
rating criteria of DC 7346; and the criteria of multiple
other diagnostic codes.
Id. at 128–35.
In the context of diagnostic code selection for conditions
listed on the Schedule, the Veterans Court reviews the
Board’s application of law to the facts under the “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law” standard set forth in 38 U.S.C.
§ 7261(a)(3)(A). Butts v. Brown,
5 Vet. App. 532, 539 (1993)
(en banc). Neither party disputes this standard of review.
Appellant Reply Br. 5–6; Appellee Br. 8. Because selection
of an analogous diagnostic code for rating unlisted conditions also concerns questions of fact, or at least questions
of the application of law to the facts, the same deferential
standard of review applies. See Bufkin v. Collins,
604 U.S.
___,
145 S. Ct. 728, 739 (2025) (“When the tribunal below
is ‘immerse[d]’ in facts and compelled to ‘marshal and
weigh evidence’ . . . the appellate court ‘should usually review a decision with deference.’” (quoting U.S. Bank Nat.
Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC,
583 U.S. 387, 396 (2018))). We therefore conclude the Veterans Court applied the correct standard of
review.
Case: 23-2358 Document: 40 Page: 5 Filed: 05/30/2025
HERRINGTON v. COLLINS 5
CONCLUSION
We have considered Mr. Herrington’s remaining arguments and find them unpersuasive. Accordingly, we affirm
the Veterans Court’s decision.
AFFIRMED
